Foreign Intelligence Surveillance Act -- Motion to Proceed
Floor Speech
FOREIGN INTELLIGENCE SURVEILLANCE ACT--MOTION TO PROCEED -- (Senate - December 14, 2007)
BREAK IN TRANSCRIPT
Mr. WYDEN. Madam President, for nearly 30 years, the Foreign Intelligence Surveillance Act, FISA, as it has come to be known, has represented the ultimate balance between our country's need to fight terrorism ferociously and to protect the constitutional rights of the American people.
I intend to outline several of the key issues in this debate this afternoon. First, though, I want to say a word about the process which the distinguished Senate majority leader has just touched on.
I was one of two in the Senate Intelligence Committee to oppose the Intelligence Committee's version of the legislation. I am strongly opposed to granting telecommunications companies total retroactive immunity when they have been accused of wrongdoing in the President's warrantless wiretapping program. The Intelligence Committee legislation includes such a grant of immunity, and it was the major reason I opposed the legislation.
I do, however, respect Senator Reid's decision to hold the debate on this legislation under the regular Senate rules. Certainly, the distinguished majority leader has been under a lot of pressure from all sides to change the rules that in one way might favor one side or the other, but I think the majority leader has made the right decision by insisting that this debate go by the book.
I have had the chance now to work with the distinguished majority leader for more than a quarter century. I know how much respect he has for the Senate and for this institution. He firmly believes in the committee process. He firmly believes in the Senate's rules and traditions, and he worked to carry those beliefs out as both the minority whip and the minority leader. So we will have a chance, as Senator Reid noted, to try to work a compromise on several of these key issues.
I have said on a number of occasions, it may well be appropriate that the phone companies deserve some measure of protection with respect to their role in this surveillance program. But at a time when there are scores of lawsuits, the idea of complete and retroactive immunity seems to me to be over the line.
It would be my intention, if we cannot reach a compromise on this issue--and it is my hope we will--it would be my intention, once again, to oppose legislation that grants total and complete immunity for the companies.
Now, when the Senate Intelligence Committee picked up on its work this fall, coming back after the recess period, once again, we had a chance to meet with the director of the intelligence community, Mr. McConnell. As usual, he laid out a thoughtful case on a key issue, and that is that in some respects the Foreign Intelligence Surveillance Act has not kept up with the times.
Clearly, there are threats overseas, when one foreigner communicates with another foreigner, where it is important that our intelligence officials are in a position to protect the interests of the American people and run surveillance with respect to those conversations.
I and others said to the administration repeatedly that we would be supportive of that effort, and we would be supportive of that effort even when on an incidental basis it might pick up the conversations of innocent Americans. It was an effort to try to reach common ground with the administration and, in particular, to acknowledge that Admiral McConnell had a very valid point.
But, unfortunately, the administration would not take yes for an answer. I and others said--Chairman Rockefeller, Senator Bond. I have had the chance to work closely with both of them. Both of them have been supportive of a number of initiatives I have felt strongly about with respect to accountability, holding the intelligence community to its word with respect to disclosure, declassification.
I have the view that when Chairman Rockefeller and Senator Bond have a chance to work with a number of us on the committee, we can find common ground on a lot of these key issues. We can find common ground on the issue that the administration said for months and months was their principal concern; and that was to be able to pick up on the conversations of individuals overseas who represented a real threat to the security and well-being of the American people.
But, as I indicated, that was not enough for the administration. They would not accept yes for an answer. At that point, they then began to push very hard for this idea of complete and retroactive immunity for the telecommunications companies. This came, of course, after years and years of the administration saying this program was lawful. I have had some difficulty squaring the fact that the administration said for so long--for literally years--that the program was lawful and now, in the face of all these lawsuits, despite the assertion that the program was so lawful, there should be this blanket grant of immunity. So that alone raised concerns on my part. I decided to dig even more deeply into this issue.
There are a number of Department of Justice legal opinions that relate to this program. The President has refused to make these opinions public or even share them with most Members of Congress. Our committee has reviewed the Department of Justice legal opinions related to the President's warrantless wiretapping program, and I have read these opinions myself. In my judgment, the legal reasoning in these opinions is shaky at best, and in some areas it is exceptionally weak.
I think most Americans would be surprised and dismayed to learn that their President had ordered the NSA to conduct this program based on such flimsy legal justification. Nothing in any of these opinions has convinced me that the President's warrantless wiretapping program was legal. Now that the existence of the warrantless wiretapping program has been confirmed, I see no national security reason to classify most of these opinions. As far as I can tell, these opinions are being kept classified in order to protect the President's political security, not our national security.
Our committee has also reviewed written correspondence sent to certain telecommunications companies by the Government, and I have read this correspondence as well. I cannot reveal the details of this correspondence, but I can say that I remain unconvinced that the Congress should grant total immunity to the companies.
For years, there have been a number of laws on the books, such as the Wiretap Act, the Electronic Communications Privacy Act, and, of course, the Foreign Intelligence Surveillance Act, that together make it very clear that participating in a warrantless wiretapping program is against the law.
Now, a number of our colleagues have argued that any companies that were asked to provide assistance after September 11 should be granted leniency since they acted during a time of national panic and understandable confusion.
I think this argument has some merit, but the bill that was reported by our committee would not just grant immunity for 6 months or a year after September 11, it would grant immunity for actions taken up to 5 years after our country was attacked. I think that is far too long, and I will explain why.
If a phone company executive was asked to participate in warrantless wiretapping in the weeks after September 11, it is understandable that he or she might not take the time to question assertions from the Government that the wiretapping was legal, but this should not give a free pass to participate in warrantless wiretapping forever. At some point over the following months and years, this phone company executive has an obligation to think about whether they are complying with the law, and as soon as you realize that you are breaking the law, you have an obligation to stop. In the months and years following September 11, it should have been increasingly obvious to any phone company that was participating in this program that it might not be following the law.
For starters, in the weeks after September 11, Congress and the President got together to review the Foreign Intelligence Surveillance Act, including the wiretapping provisions. But Congress did not change the sections of the Foreign Intelligence Surveillance Act that state warrantless wiretapping is illegal. This should have been a giant red flag to any phone company that participated in the program.
Next, in the summer of 2002, the Director of the NSA, General Hayden, appeared before our committee in open session and testified about the need to get warrants when someone was inside the United States. I am sure General Hayden would argue he was parsing his words carefully, but at a minimum it was clear, at this point, most of the Congress, and certainly the American people, believes warrantless wiretapping was illegal. The President has argued he authorized this program under his authority as Commander in Chief, but in the spring of 2004, the Supreme Court issued multiple rulings clearly rejecting the idea that the President can do whatever he wishes because the country is at war. These rulings should have also been a giant red flag for any phone company engaged in warrantless wiretapping.
Finally, as the Intelligence Committee's recent report noted, most of the letters requesting assistance stated the Attorney General believed the program was legal, but as our report points out, one of the letters did not even say the Attorney General had approved. I have read this letter, and I believe it should have set off loud alarm bells in the ears of anyone who received it. In my view, as the years rolled by, it became increasingly unreasonable for any phone company to accept the Government's claim that warrantless wiretapping was legal. By 2004, at the very latest, any companies involved in the program should have recognized the President was asking them to do things that appeared to be against the law. The former CEO of Qwest has said publicly he refused requests to participate in warrantless surveillance because he believed it violated privacy laws. I cannot comment on the accuracy of this claim, but I encourage my colleagues to stop and think about its implications.
I also encourage my colleagues to go read the letters that were sent to telecommunications companies. I think these letters seriously undermine the case for blanket retroactive immunity. The bill that passed the Intelligence Committee would grant immunity long past the point at which it was reasonable for phone companies to believe the President's assertions. It would even grant immunity stretching past the point at which the program became public. By the beginning of 2006, the program was public and all the legal arguments for and against warrantless wiretapping were subject to open debate. Clearly, any companies that participated in this program in 2006 did so with the full knowledge of the possible consequences. I see no reason at all why retroactive immunity should cover this time period. When the Senate Intelligence Committee voted to grant total retroactive immunity, I voted no because I thought it was necessary to take more time to study the relevant legal opinions as well as the letters that were sent to the communications companies.
Now that I have had a chance to study these documents, I am convinced that granting 6 years of total retroactive immunity is not warranted. I would very much like to support this important legislation because certainly there are many good provisions and they have been put together under the work of Chairman Rockefeller and Senator Bond. It is my hope, as Senator Reid noted earlier, we will be able to find a compromise with respect to this issue. As I have said, it may well be clear at some point down the road that the phone companies deserve some measure of protection. We certainly want law-abiding citizens and companies to be supportive of our country in times of danger, and that is why I have made the point that if we were talking about a relatively short period after 9/11, it would be one thing, but it is quite another when you are talking about year after year after year, when there were red warning flags going up.
So I look forward to working with Chairman Rockefeller and Senator Bond, both of whom have great expertise in this field and have always been very fair, and I hope we can find a way to address the question of the communications companies in a fair way.
I would also like to say, before I wrap up--I know it is late in the day--a quick word about an amendment I offered in the committee that has been included in both versions of the legislation that the Senate Intelligence Committee wrote and that was written in the Judiciary Committee. Many Americans may not realize the original FISA law only provided protections for our people inside the United States and it does not cover Americans who travel overseas. If the Government wants to deliberately tap the phone calls of a businesswoman in Minneapolis, MN, or an armed services member in Roseburg, OR, the Government has to go to a judge and get a warrant. But if that
It is my view that in the digital age, it makes no sense for Americans' rights and freedoms to be limited by physical geography. So when the Intelligence Committee was writing its legislation, I offered an amendment that would require the Government to get a warrant before deliberately surveilling Americans who happen to be outside the country. That amendment establishing these ``rights that travel,'' so to speak, was cosponsored by Senators FEINGOLD and WHITEHOUSE, and it was approved in the Senate Intelligence Committee on a bipartisan vote. The White House, regrettably, called this amendment troublesome, and I will only say I am prepared to work with colleagues on this issue. Just as I indicated I will be working with our Vice Chairman, Senator Bond, on the issue of telecommunications immunity, I am prepared to work with him and the chairman of the committee, Senator Rockefeller, on my amendment to make sure there are no unintended consequences with respect to the amendment I authored that is in the Intelligence Committee legislation and that is also in the Judiciary Committee print.
I am not prepared to agree that Americans who step outside the country should have fewer rights than they do here at home. I am going to fight for that amendment that ensures Americans in the digital age have their individual liberties, have their constitutional rights wherever they travel, and I am going to fight for it even if the administration continues to oppose it.
I yield the floor, and I note the absence of a quorum.
BREAK IN TRANSCRIPT
Source